Judge: Dispute over execution drug to go to trial

HELENA — A judge ruled Thursday that a constitutional challenge to Montana’s execution methods will go to trial.

The Sept. 2 trial will focus on whether the sedative pentobarbital, which is called for under Montana’s lethal injection protocols, could lead to an excruciating and terrifying death.

Attorneys for Ronald Allen Smith and William Gollehon — Montana’s two death row inmates — argue the sedative does not adhere to a state law requiring an “ultra fast-acting” barbiturate be used in capital punishment.

The Legislature has mandated but never precisely defined what constitutes an ultra fast-acting drug. In his order, District Judge Jeffrey Sherlock provided a judicial interpretation.

“The Legislature intended that the barbiturate used have an almost immediate onset of action in that unconsciousness occurs quickly,” Sherlock wrote.

Both sides are planning to present medical experts at the upcoming trial. Doctors previously said in depositions and declarations that ultra fast-acting is not a common medical term and they could not form a definitive opinion on its application to lethal chemicals.

A Tennessee judge on Wednesday upheld that state’s use of pentobarbital in its one-drug method of execution.

On Tuesday, a federal judge in Mississippi put that state’s use of pentobarbital and midazolam on hold and indicated it seems likely the state has failed to use an “ultra short-acting barbiturate or other similar drug.”

After an order from Sherlock, the Montana Department of Corrections updated its execution protocol in January 2013 to a two-drug instead of three-drug injection. The method calls for a barbiturate such as pentobarbital to be followed by a paralytic agent called pancuronium bromide.

State attorneys have said the new method adequately addressed Sherlock’s concerns. But it has yet to be used in Montana.

David Dawson was the most recent person executed in 2006. Other executions have been stayed for the duration of the current case.

Smith was sentenced to death in 1983 in the double homicide of two men. Gollehon was sentenced to death in 1992 for beating to death an inmate at Montana State Prison.